AAEO Coordinator Training Table of Contents

1
AAEO Coordinator TrainingTable of Contents

• Page
• AAEO Coordinator Training Description.......
  .....4
• Things To Do Before Filling Job......
  ........5
• Advertising...................
  ......8
• Screening Applicants11

2
AAEO Coordinator TrainingTable of Contents

• Page
• Interviewing.12
• Title VII...17
• Age Discrimination in Employment Act
  (ADEA)..29
• Equal Pay Act31
• Americans with Disabilities Act
  (ADA)..33
• Review Accommodations for the Disabled
  .50
• Review the Process (AAEO Data Card)..........
  ..51
• The Recruitment Process.52

3
AAEO Coordinator TrainingTable of Contents

• Page
• Checking References.57
• Hiring....58
• Adverse Impact Applicant Flow Data Under Title
  VII....67
• Equal Employment OpportunityU.S. Equal
  Employment Opportunity
• CommissionAffirmative Action Links.
  81

4
AAEO Coordinator Training

• Provides guidance on what is required in
  recruitment, interviewing, and selection and
  hiring to comply with the federal statutes
  outlawing employment discrimination.

5
THINGS TO DO BEFORE FILLING A JOB OPENING

• Before an employer advertises for a position
  (and ideally before an opening occurs), it should
  create an appropriate recruitment and selection
  process and make basic decisions about how to
  conduct the process. No amount of training or
  preparation can totally insulate employers from
  having discrimination charges filed against them
  but training and preparation can reduce the
  number of charges filed and significantly reduce
  an employers liability from a charge.

6
Job Description Review the written job
description for the position to be sure that it
describes the essential functions of the position.

• If you have written job descriptions, review
  them for accuracy. To review and prepare a
  detailed job description, you should
• Observe the jobs
• Talk to employees who actually do the jobs
• Observe how the positions fit into the other
  positions in the organization
• Decide if you need to make changes in the
  functions or duties
• Draft descriptions based on your experience and
  observations and
• Use the position descriptions in the selection
  process.

7
Workforce Survey

• Look at your workforce to determine if some
  protected group (race, sex, national origin,
  religion, age, etc.) is underrepresented.
• NOTE Under representation does not require an
  employer to hire a member of the underrepresented
  group.

8
Examine the methods used to solicit applicants.

• Decide if the methods used in the past have
  resulted in a diverse workforce and how you want
  to recruit for future openings. Will the method
  you choose reach all areas of the population, or
  are some groups excluded? If some areas or groups
  are excluded, you should broaden the scope of
  your recruitment effort.

9
Advertising or posting positions

• Before you advertise or post for open positions,
  you also should consider what you want an
  applicant to do to apply for the job. Some things
  to consider
• Should an applicant submit a resume or an
  application? If an application, then the form
  should be reviewed to ensure that it does not
  solicit unlawful or improper information.
• Determine whether potential applicants who have
  disabilities can obtain applications. Be prepared
  to accommodate the needs of applicants with
  disabilities.

10
Advertising

• Be careful about the language that you use it
  could subject you to liability if it is
  discriminatory. The following are examples of
  types of phrases which should not be placed in
  advertisements.
• Recent college graduate (ADEA violation)
• 0-1 years of experience (ADEA)
• Young, energetic (ADEA)
• hostess or waitress (Title VII)
• Christian carpenter wanted (Title VII)

11
Screening Applicants Unless the applicant group
is very small, you will need to screen out the
less qualified applicants.

• Before screening applicants, establish written
  criteria that are objective and relate to the
  requirements or qualifications for the position.
• Apply the criteria consistently.
• Make and keep a record of the criteria and how
  they were applied.
• Review the results of the screening process to
  determine if the criteria had a disparate impact
  on any particular group.
• In one case, the Equal Employment Opportunity
  Commission (EEOC) sued a company which the
  companys receptionist was throwing away
  applications from African American applicants. If
  you focus only on training human resource
  managers and interviewers, you will overlook
  others who could subject you to liability.

12
Prepare the Interviewers.Before you begin the
interviewing, make sure that

• The persons who will do the interviewing are
  familiar with the questions to be asked and can
  be relied on to ask the prescribed questions and
  give objective assessments of the persons
  interviewed.
• All persons (including receptionists, clerks,
  etc.) who come in contact with the applicants and
  interviewees are trained to deal with applicants
  and interviews in a polite, even-handed way.
• In one case, the EEOC sued a company which the
  companys receptionist was throwing away
  applications from the African American
  applicants. If you focus only on training human
  resource managers and interviewers, you will
  overlook others who could subject you to
  liability.

13
InterviewBefore you begin interviewing, create a
list of written interview questions. While not
required by law, it is a good idea to

• Ask the same questions of each applicant.
• Make and retain notes of each interview.
• Make sure the person selected is objectively the
  most qualified or at least equally qualified in
  comparison to the criteria that you set.
• Retain the records for a least one year.

14
APPLICATION AND INTERVIEWING

• The statues enforced by the EEOC do not specify
  information that may not be solicited of
  applicants for employment. What is important is
  whether the information being solicited is sought
  for discriminatory purposes. Nevertheless,
  inquires which directly or indirectly disclose
  the applicants race, color, religion, sex,
  national origin, or age will be closely
  scrutinized and may constitute evidence of
  discrimination. Questions that are likely to
  elicit information about an applicants
  disability are unlawful before the applicant has
  been given an offer of employment.

15
APPLICATION AND INTERVIEWING (continued)

• In addition, some state laws do expressly
  prohibit inquiries about an applicants race,
  color, religion, sex, national origin, age
  disability or other traits, and some states and
  municipalities prohibit employment discrimination
  based on other ground (for example,
  discrimination based on sexual orientation,
  marital status or appearance).

16
APPLICATION AND INTERVIEWING (continued)

• The key to lawful employment inquiries is to ask
  only questions that will provide information
  about the persons ability to do the job, with or
  without reasonable accommodation. Asking
  questions in the following area, either on an
  employment application or in an interview, might
  subject an employer to liability, the information
  is used to discriminate.

17
APPLICATION AND INTERVIEWINGTitle VII

• Are you available to work on weekends?
• Although it is perfectly reasonable to ask if an
  applicant can work weekends if there is a need,
  this question may discourage applicants of a
  certain religion, which prohibit working Friday
  nights, Saturdays or Sundays. If there is a
  business necessity for asking this question, the
  employer should make it clear that it will make a
  reasonable effort to accommodate the employees
  religious practices.

18
APPLICATION AND INTERVIEWINGTitle VII (continued)

• Do you have children under the age of 18? How
  many? How old are they? What arrangements will be
  made for child care?
• Questions of this type are often used to
  discriminate against women. It is a violation of
  Title VII to require pre-employment information
  about child care arrangements from female
  applicants only, and employers cannot have
  different hiring policies for men and women and
  pre-school children. Information needed for tax
  or Social Security purposes can be obtained after
  the applicant is hired.

19
APPLICATION AND INTERVIEWINGTitle VII (continued)

• Are you a United States citizen?
• Title VII extends coverage to both U.S. and
  non-citizens with respect to employment in the
  United States. Although Title VII does not
  specifically prohibit discrimination on the basis
  of citizenship, citizenship requirements may
  violate Title VII where they have the purpose or
  effect of discriminating on the basis of national
  origin. Therefore, where consideration of
  citizenship has the purpose or effect of
  discriminating against persons of a particular
  national origin, a person who is a lawfully
  immigrated alien, legally eligible to work, may
  not be discriminated against on the basis or
  his/her citizenship, except in the interest of
  national security or as determined under a U.S.
  statute or presidential executive order
  respecting the particular position or premises in
  question.

20
APPLICATION AND INTERVIEWINGTitle VII (continued)

• The Immigration Reform and Control Act of 1986
  (IRCA) makes it a crime to knowingly hire an
  unlawful alien and requires all employers to
  verify the citizenship status of all job
  applicants before hiring them. Rather than asking
  the above, an employer would be better advised to
  ask Can you, after being hired, verify your
  legal right to work in the United States? This
  question must be uniformly asked and an employer
  cannot require actual production of work
  authorization until after hiring.

21
APPLICATION AND INTERVIEWINGTitle VII (continued)

• Credit record? Charge accounts? Own your home?
  Own your furniture? Own a car?
• Rejection of applicants because of poor credit
  ratings has a disparate impact on minority groups
  and has been found unlawful by the Commission,
  unless business necessity can be shown. Inquires
  about an applicants financial status, such as
  bankruptcy, car ownership, rental or ownership of
  a house, length of residence at an address or
  past garnishments of wages, if used to make
  employment decisions, may also violate Title VII.
  Such inquiries also might have a disparate impact
  on women, because many women do not have credit
  history separate from their husbands histories.

22
APPLICATION AND INTERVIEWINGTitle VII (continued)

• Height? Weight?
• Minimum height and weight requirements are
  unlawful if they screen out a disproportionate
  number of minority-group individuals (e.g.,
  Hispanics or Asian Americans) or women, and the
  employer cannot show that these standards are
  essential to the safe performance of the job in
  question. Furthermore, a court has recently ruled
  that morbid obesity is an impairment and may be a
  disability under the ADA.

23
APPLICATION AND INTERVIEWINGTitle VII (continued)

• What is your maiden name?
• Because this question applies only to women and
  is not relevant to a persons ability to perform
  a job, it could be used for discriminatory
  purposes. A permissible alternative in performing
  background checks is to inquire as to all names
  used by an applicant.

24
APPLICATION AND INTERVIEWINGTitle VII (continued)

• Are you married, single or divorced?
• Some employers have refused to hire married
  women for certain jobs. For example, for many
  years many airlines would not permit married
  women to be flight attendants, though other
  employees could be married. The courts have
  declared this a Title VII violation.
• An employer would also violate Title VII if it
  refused to hire a married woman or pay her the
  same as a married man for the same work. Finally,
  an employer cannot refuse to hire a married woman
  because of the employers belief concerning
  morality or family responsibility.

25
APPLICATION AND INTERVIEWINGTitle VII (continued)

• Are you known as Ms., Miss, or Mrs.?
• This is another way to ask an applicants sex
  and marital status, and such questions serve no
  other pre-employment purpose.
• What is your spouses name? Where does he/she
  work?
• To the extent that this question asks for
  marital status, the comments on martial status
  apply. A spouses name can also be used as an
  indication of religion or national origin.

26
APPLICATION AND INTERVIEWINGTitle VII (continued)

• Are you pregnant? Do you plan to have children?
• Title VII prohibits discrimination based on
  pregnancy, childbirth and related medical
  conditions. Therefore, employers should not ask
  questions regarding pregnancy or future
  childbearing plans.

27
APPLICATION AND INTERVIEWINGTitle VII (continued)

• Have you been arrested for, or convicted of, any
  crime?
• Because members of some minority groups are
  arrested substantially more often than whites in
  proportion to their numbers in the population,
  making personnel decisions on the basis of arrest
  records involving no subsequent convictions has a
  disproportionate effect (adverse impact) on the
  employment opportunities of members of these
  groups. Thus, the use of arrest records alone as
  an absolute bar to employment is illegal.
  However, conduct which indicates unsuitability
  for a particular position is a basis for
  excluding an applicant or employee. Where it
  appears that the applicant or employee engaged in
  the conduct for which s/he was arrested and that
  the conduct is job related and relatively recent,
  exclusion from employment is justified.

28
APPLICATION AND INTERVIEWINGTitle VII (continued)

• It is the Commissions position that an
  employers policy or practice of excluding
  individuals from employment on the basis of their
  conviction records has an adverse impact on
  Blacks showing that they are convicted at a rate
  disproportionately greater than their
  representation in the population. However, when
  the employer can present more narrowly drawn
  statistics showing that Blacks or Hispanics are
  not convicted at a disproportionately greater
  rate, or that there is no adverse impact in their
  own hiring process, then no violation would
  occur. Other factors to be considered include (1)
  the nature and gravity of the offense (2) the
  time that has passed since the conviction and/or
  completion of the sentence and (3) the nature of
  the job being held or sought.

29
APPLICATION AND INTERVIEWINGAge Discrimination
in Employment Act (ADEA)

• How old are you? What is your date of birth?
• Asking older applicants to give their age might
  deter them from applying, and can indicate
  discrimination based on age. So, applications
  that request such information will be closely
  scrutinized to ensure that the information is not
  used to discriminate against older applicants.

30
APPLICATION AND INTERVIEWINGAge Discrimination
in Employment Act (ADEA) continued

• When did you graduate from high school? College?
• Most people graduate from high school and
  college around specific ages, so this information
  can be used to approximate an applicants age. A
  graduation date does not indicate a persons
  ability to do a job, and employers should not ask
  for such information on applications or during
  interviews. If such information is needed for
  legitimate business purposes, it can be obtained
  after a conditional job offer is made.

31
APPLICATION AND INTERVIEWINGEqual Pay Act

• How much money does your husband make? How much
  salary do you need?
• Some employers ask these questions if they know
  that a woman is married, the assumption being
  that she should work for less money because her
  husband is the primary breadwinner. One woman
  who was asked this impermissible question
  responded The question is how much am I worth?

32
APPLICATION AND INTERVIEWINGEqual Pay Act

• What is the lowest salary you will accept?
• Women generally have been relegated to lower
  paying jobs than men, and paid less than men for
  the same work. As a result, a woman might be
  willing to work for less pay than a man would
  find acceptable. However, it is unlawful to pay a
  woman less than a man because of community wage
  patterns, which are based on discrimination. Men
  and women performing substantially equal work
  should be paid equal wages.

33
APPLICATION AND INTERVIEWINGAmericans with
Disabilities Act (ADA)

• Note While this section concerns the interview
  process as it is regulated by the ADA. The rules
  and regulations pertaining to interviewing apply
  equally to employment applications.
• As noted above, the ADA expressly makes it
  unlawful to make any pre-offer inquiry about an
  applicants disability. Although inquiring about
  a persons minority status or age may result in
  unlawful discrimination if subsequent employment
  decisions are based on the information obtained,
  under ADA merely making the inquiry is unlawful.

34
APPLICATION AND INTERVIEWINGAmericans with
Disabilities Act (ADA)

• During the interview process, the interviewer
  should take special care to avoid the following
  types of inquiries
• Do you have a disability?
• What is the nature or severity of your
  disability? (Or, the nature and severity of any
  conditions or diseases for which an applicant has
  been treated.)
• Instead, ask an applicant whether s/he can
  perform the duties of the job with or without
  accommodation or give a test (but only if all
  applicants are asked the same question or given
  the same test).

35
APPLICATION AND INTERVIEWINGAmericans with
Disabilities Act (ADA)

• NOTE An employer may ask about the individuals
  ability to perform both essential and marginal
  functions of the job. But an employer cannot
  screen out because of the inability to perform
  marginal functions. If an individual has a known
  disability that may interfere with performance,
  the employer may ask that person to describe or
  demonstrate performance, even though this is not
  asked of other applicants.

36
APPLICATION AND INTERVIEWINGAmericans with
Disabilities Act (ADA)

• Have you ever been hospitalized?
• Have you ever been treated for a mental illness?
• Are any of your friends or family disabled?
• The ADA forbids discrimination based on a
  persons relationship or association with a
  disabled person.
• Example Suppose that the interviewer was aware
  that the applicants spouse had the HIV virus. It
  would be unlawful to base an employment decision
  on that knowledge.

37
APPLICATION AND INTERVIEWINGAmericans with
Disabilities Act (ADA)

• An applicants past record of a disability
• It would be unlawful to question the applicant
  regarding his record of addiction or the nature
  of his treatment. In addition, it would be
  unlawful to decide not to hire the applicant
  based on that knowledge.
• Have you ever filed a workers compensation claim
  or suffered a disabling injury in a previous job?
• This is unlawful because it is likely to reveal
  information about a persons disability prior to
  giving that person a job offer.

38
APPLICATION AND INTERVIEWINGAmericans with
Disabilities Act (ADA)

• The EEOC has recently determined that obesity is
  clearly an impairment if the person has severe
  obesity, which has been defined as body weight
  more than 100 over the norm, see the Merck
  Manual of Diagnosis and Therapy 981 (Robert
  Berkow ed., 16th ed. 1992), is clearly an
  impairment.

39
APPLICATION AND INTERVIEWINGAmericans with
Disabilities Act (ADA)

• In addition, a person with obesity may have an
  underlying or resultant physiological disorder,
  such as hypertension or a thyroid disorder. A
  physiological disorder is an impairment. See 29
  C.F.R. 1630.2(h). Being overweight, in and of
  itself, generally is not an impairment. See 29.
  C.F.R. pt. 1630 app. 1630.2(h) (noting that
  weight that is within normal range and not the
  result of physiological disorder is not an
  impairment).

40
APPLICATION AND INTERVIEWINGAmericans with
Disabilities Act (ADA)

• Will you need time off for medical treatments or
  for other reasons associated with your
  disability?
• At the pre-offer stage, the information sought
  is not likely to be relevant to whether a person
  is able to perform the essential functions of the
  job with or without reasonable accommodation.
  Even if it is relevant it still cannot be asked
  in the pre-offer stage.
• The interviewer or selecting official also
  cannot ask about an applicants disability during
  pre-offer reference checks. In addition, because
  the ADA, makes it unlawful to discriminate on the
  basis of disability as the result of contractual
  or other agreement, it is unlawful for an outside
  firm making selection decisions, interviewing
  candidates or making pre-offer reference checks
  on behalf of the employer to make prohibited
  inquiries.

41
APPLICATION AND INTERVIEWINGAmericans with
Disabilities Act (ADA)

• An employer may ask
• All applicants (whether with or without a
  disability) whether they can perform the duties
  of the job, with or without accommodation.
• If the applicant has the necessary ability and
  experience in relation to specific duties
  associated with the job functions.
• If the applicant has the necessary licenses,
  diplomas, training, certificates, or other
  qualifications required.
• The applicant to describe or demonstrate how s/he
  will perform job functions, if this is required
  of everyone, regardless of disability or if the
  applicant has a known disability that could
  interfere with performance of job functions.

42
APPLICATION AND INTERVIEWINGAmericans with
Disabilities Act (ADA)

• If a demonstration is requested, the employer
  must be ready to provide a necessary
  accommodation to allow a person with a disability
  to perform the demonstration or reschedule the
  demonstration to allow the employer to provide
  the necessary reasonable accommodation.
• If the applicant can meet the requirements of the
  employers work hours, overtime work, and
  attendance policies.
• The applicants previous employers about the job
  functions and tasks performed by the applicant,
  the quantity and quality of the work performed,
  and how the work was performed. It may ask about
  the applicants attendance record and other
  job-related questions that are not likely to
  disclose disability.

43
APPLICATION AND INTERVIEWINGAmericans with
Disabilities Act (ADA)

• Notwithstanding the prohibitions stated above,
  an employer may
• Test the ability of all applicants (with or
  without disabilities) to perform the duties of
  the job.
• Test applicants for abuse of unlawful drugs
  (former drug addicts or alcoholics may qualify as
  individuals with disabilities entitled to
  necessary reasonable accommodation).
• Select the best qualified candidate. (However,
  neither a candidates need for reasonable
  accommodation nor his inability can be factored
  in to decide which candidate is best qualified.)
• Refuse to hire someone whose disability poses a
  direct threat to the health or safety of an
  individual or others, if there is a significant
  risk of substantial harm and the risk cannot be
  mitigated through reasonable accommodation. (See
  the discussion below.)

44
APPLICATION AND INTERVIEWINGAmericans with
Disabilities Act (ADA)

• Reasonable accommodations during the application
  and recruitment process. Most employers are aware
  that reasonable accommodations be made for
  disabled individuals who, once hired, can perform
  the essential functions of their jobs with such
  accommodations. Employers should also be aware of
  the requirement that reasonable accommodations be
  given to individuals who need them in order to
  successfully complete applications. (Note This
  outline only deals with the hiring process, and
  not all of the issues of reasonable accommodation
  in employment.

45
APPLICATION AND INTERVIEWINGAmericans with
Disabilities Act (ADA)

• The ADA requires that tests be given to people
  with disabilities that have impaired sensory
  speaking or manual skills in a format the does
  not require use of the impaired skill, unless the
  test is designed to measure that skill.
• Some examples of accommodation are
• Substituting a written test for an oral test (or
  written instructions for oral instructions) for
  people with disabilities that have impaired
  speaking or hearing skills.
• Administrating a test in large print, in Braille,
  by a reader, or on a computer for people with
  visual or other reading disabilities.

46
APPLICATION AND INTERVIEWINGAmericans with
Disabilities Act (ADA)

• Providing the servers of a sign language
  interpreter for applicants with impaired hearing
  during the interview and testing procedures.
• Allowing people with visual or learning
  disabilities or people with disabilities that
  limit the use of their hands to record test
  answers by means of a tape recorder, dictation
  machine or computer.
• Providing extra time to complete a test for
  people with certain learning disabilities.
• Simplifying test language for people who have
  limited language skills because of a disability.

47
APPLICATION AND INTERVIEWINGAmericans with
Disabilities Act (ADA)

• Scheduling rest breaks for people with certain
  mental or other disabilities that may require
  such breaks.
• Allowing a person with a mental disability whom
  cannot perform well when there are distractions
  to take a test in a separate room.
• Where it is not possible to test an applicant
  with a disability in an alternative format, an
  employer may be required, as a reasonable
  accommodation, to evaluate the skill or ability
  being tested through some other means, such as an
  interview, education, work experience, licenses
  or certifications or a job demonstration.

48
APPLICATION AND INTERVIEWINGAmericans with
Disabilities Act (ADA)

• Generally, an employer is only required to
  provide an accommodation if it knows, before
  administering a test, that an accommodation will
  be needed, it is suggested that the employer
  inform applicants, in advance, of any tests that
  will be administered as part of the application
  process that they may request an accommodation,
  if needed.
• The employer may require that an applicant with
  a disability request an accommodation within a
  specific time period before administration of the
  test. The employer may require the applicant with
  a disability to document the need for an
  accommodation. If the only possible accommodation
  would cause undue hardship to the employer, the
  employer should document

49
APPLICATION AND INTERVIEWINGAmericans with
Disabilities Act (ADA)

• All unsuccessful efforts to find more feasible
  alternatives and
• That the necessary accommodations were too
  costly, would require substantial changes, would
  be disruptive, or would fundamentally alter the
  nature or operation of the business that
  applicant with a disability cannot perform the
  selection procedure without the accommodation,
  and
• That the applicant with a disability was
  unwilling or unable to assume the cost where the
  cost was the cause of the undue hardship.

50
Review Accommodations for the Disabled

• It is an Americans with Disabilities Act (ADA)
  violation if the application and interviewing
  sites are not accessible to the disabled unless
  it would be an undue hardship to make them
  accessible.

51
Review the ProcessAAEO Card Data

• When the selection process is over, you should
  quantify the applicant flow data and the
  selection data by protected class status and
  periodically review the results.

52
THE RECRUITMENT PROCESS

• There are a number of ways in which employers
  locate job applicants. While none of the
  following methods are prohibited per se, care
  should be taken not to rely too heavily on any
  one method, as the recruitment process might tend
  to favor younger workers over older workers, or
  one gender, ethnic group or racial group to the
  exclusion of others. There is no requirement that
  employers advertise all job openings, rather than
  hire based upon word of mouth or walk in
  applicants. However, employers face problems when
  this type of recruitment results in an unbalanced
  workforce.

53
Recruitment Walk Ins

• Some employers advertise their job openings only
  at their places of business, and only accept
  applications there. This could be discriminatory
  because it depends on your location and
  workforce. If your location is in an all-white
  neighborhood, non-whites are likely to be
  deterred from applying. If the employer is a
  restaurant or retail store catering to the young,
  older people are likely to be deterred from
  applying, because they will believe that they
  will not be hired if they are not white, female
  or young.

54
Recruitment Word of Mouth

• This could be discriminatory because it depends
  on your workforce. If that workforce is, for
  example, almost entirely white, male or young,
  then word of mouth referrals will only reinforce
  the non-diverse nature of the workforce and
  discriminate against persons who are not white,
  male or young.

55
Recruitment Referral Fees and Bonuses

• Some employers offer finders fees to their
  employees (for example, paying 200 to an
  employee who refers another person for
  employment, and the new employee works for the
  employer for at least three months). This can
  cause the same problems as word of mouth
  referrals if your workforce is non-diverse.

56
Recruitment Employment Agencies

• Some employers rely on employment agencies to
  screen employees. This also can cause problems if
  employers do not make it clear that the agencies
  should observe the law.
• In one case investigated by the EEOC, a Fortune
  500 corporation hired an employment agency to
  find suitable candidates for a corporate Manager
  of Cultural Diversity. Allegedly, the
  corporation stated a preference for a non-white
  female. The agency called an EEOC District
  Office, and encouraged EEOC investigators to
  apply. However, it told a white male investigator
  that the corporation would not be interested in a
  white male, and deterred him from applying. This
  was found to be a Title VII violation by the
  employment agency.
• Employers who knowingly allow employment agencies
  to engage in discriminatory activities on their
  behalf have themselves violated the law.

57
CHECKING REFERENCES

• Even though a reference check often will not do
  anything more than to confirm job title, salary
  and length of employment, the information
  obtained can be useful. Do not ask pre-offer
  reference questions that would be unlawful to ask
  the candidate directly. Examples
• Does the candidate have any children under the
  age of 18?
• Does the candidate have any disabilities?
• How old is the candidate?
• Has the candidate ever filed a discrimination
  charge with any local, state or federal agency?
  (This would constitute unlawful retaliation, even
  if you are not the employer who was the subject
  of the charge.)
• Has the candidate every filed a workers
  compensation claim?

58
HIRING

• Special ADA considerations
• The ADA distinguishes between the pre-offer and
  post-offer stages of the hiring process in terms
  of what is permissible to require of an
  applicant. Under the ADA, employers can test
  applicants during the selection process, but
  cannot subject them to medical examinations or
  disability related inquires before making job
  offers.
• Employers may use any kind of test to determine
  job qualifications however, if a test screens or
  tends to screen out an individual with a
  disability or a class of individuals on the basis
  of disability, it must be job related and
  consistent with business necessity.

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HIRING

• This applies to all tests including (but not
  limited to)
• Aptitude tests
• Tests of knowledge and skill
• Intelligence tests
• Agility test, and
• Job demonstrations.

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HIRING

• Even if a test is job-related and justified by
  business necessity, the employer must make a
  reasonable accommodation, if needed. For example,
  upon request, test sites must be accessible to
  people who have mobility disabilities. The ADA
  also has a specific requirement for accommodation
  in testing.
• Employers cannot subject applicants to medical
  examinations during the pre-offer stage of the
  selection process.
• Medical examinations may be required after a job
  offer is made, provided that the employer
  requires such examinations or inquiry for all
  entering employees in a particular job category,
  not merely individuals with disabilities or those
  whom the employer believes may have a disability.
  For example, an examination can be given to all
  employees in physical labor jobs, but not to
  employees entering clerical jobs.

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HIRING

• A post-offer medical examination may be
  required, without a showing of business
  necessity.
• The employer at the post-offer stage of the
  employment process may require documentation or
  verification of the need for reasonable
  accommodation to perform the essential functions
  of the position.
• If, based on a post-offer medical examination,
  the employer decides to withdraw a job offer and
  not employ a person, the employer must be able to
  show that

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HIRING

• The reasons for the exclusion are job-related
  and consistent with business necessity.
• Example A medical examination reveals an
  impairment that would require the individuals
  frequent lengthy absence from work for medical
  treatment, and the job requires daily
  availability for the next three months. In this
  situation, the individual is not able to perform
  the essential functions of the job, and no
  accommodation is possible.

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HIRING

• The person is being excluded to avoid a direct
  threat to health or safety of the applicant or
  other employees and that no reasonable
  accommodation would enable this person to perform
  the essential job functions without posing a
  direct threat or that such an accommodation
  would cause undue hardship.
• The results of a medical examination may not be
  used to disqualify persons currently able to
  perform essential job functions because of
  unsubstantiated speculation about future risk.

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HIRING

• Example An individual who has an abnormal back
  x-ray may not be disqualified from a job that
  requires heavy lifting because of the fear that
  s/he will be more likely to injure her/ his back
  or cause higher workers compensation or health
  insurance costs.
• However, where there is documentation that this
  individual has seriously injured and re-injured
  his/her back in a similar job, and the back
  condition has been further aggravated by each
  injury, and if there is not reasonable
  accommodation that would eliminate the risk of
  re-injury or reduce it below the direct threat
  level, an employer would be justified in
  rejecting an individual for this position.

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HIRING

• If an employer withdraws a job offer based on a
  direct threat to the health and safety of the
  applicants or other employees, it must be
  prepared to demonstrate
• A significant current risk of substantial harm
  (not a speculative or remote risk)
• The specific risk must be identified
• The risk must be documented by objective medical
  or other factual evidence regarding the
  particular individual
• Even if a genuine significant risk of substantial
  harm exists, the employer must consider whether a
  reasonable accommodation can eliminate or reduce
  it below the level of a direct threat.

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HIRING

• Can I Test Applicants for Use of Illegal Drugs?
• Non-discriminatory application. As with all
  other pre-employment screening, an employer
  should ensure that all applicants are subjected
  equally to the screening device, whether or not
  they are members of a protected class. However,
  an alcohol or drug screening test may violate
  Title VII if it has an adverse impact on members
  of a protected group by disproportionately
  denying them employment and is not justified by
  business necessity.
• Section 104 of the ADA, 42 USC 12214, allows
  drug testing, and does not protect current users
  of illegal drugs. It may protect alcoholics who
  are not currently using alcohol and former or
  recovering drug addicts.

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AVOIDING ADVERSE IMPACT AND MAINTAINING APPLICANT
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• Employers should consult the Uniform
  Guidelines on Employee Selection Procedures in
  Part 1607 of Volume 29 of the Code of Federal
  Regulations and the 93 Questions and Answers to
  clarify and provide a common interpretation of
  these Uniform Guideline in Volume 44 of the
  Federal Register, pages 1199612009, March 2,
  1979 (questions and answers 190) and Volume 45
  of the Federal Register, pages 2953039531, May
  2, 1980 (questions and answers 9193). The
  following discussion highlights important issues
  discussed in those guides.

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• What are the Uniform Guidelines?
• The Uniform Guidelines were written to help
  employers, labor unions, employment agencies, and
  others to determine whether these and other
  selection procedures comply with the laws
  enforced by the EEOC, U.S. Department of Justice,
  and the U.S. Office of Personnel Management, the
  purpose is to have a single set of principles
  (and avoid conflict between the different
  agencies requirements) to determine the proper
  use of selection procedures.

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• What selection procedures are covered by the
  Guidelines?
• The guidelines cover all employee selection
  procedures, including hiring, retention,
  promotion, transfer, demotion, dismissal and
  referral. The types of selection methods are not
  limited to tests. They cover a full range of
  selection procedures including job requirements
  evaluations based on application forms
  interviews, training program performance or
  probationary periods, and any other procedures.
  Tests include performance tests as well as paper
  and pencil tests. The Guidelines also cover
  procedures administered by employment agencies on
  behalf of employers.

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• What do the Guidelines require?
• The Guidelines require that a selection procedure
  which has an adverse impact on the employment
  opportunities of a certain race, sex, or ethnic
  group be examined to avoid a Title VII violation.
  They require employers to keep such records as to
  be able to make such an analysis.

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AVOIDING ADVERSE IMPACT AND MAINTAINING APPLICANT
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• What is adverse impact?
• According to the Guidelines, adverse impact
  means that a particular ethnic, racial or gender
  group is being disproportionately screened out
  for hire, promotion, etc. Such a selection
  process is unlawfully discriminatory unless the
  screening process, or its components, have been
  validated in accordance with the Guidelines, or
  unless the employer otherwise justifies them in
  accordance with federal law.

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• In Connecticut v. Teal, 457 U.S. 440(1982), the
  Supreme Court rejected the notion that even
  though an individual component of a selection
  process has an adverse impact on a group, there
  is not a Title VII violation if the overall
  selection process does not have an adverse impact
  on the group (a non-discriminatory bottom line
  concept). If at any stage an individual is
  rejected due to an inappropriate selection
  method, the method is unlawful, even if the
  process compensates for the inappropriate
  selection step by ensuring that a proportionate
  percentage of the group is selected. Title VII
  protects persons individually, not merely groups.

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• For which groups should an employer maintain
  records?
• The Guidelines require employers to maintain
  records by sex and the following races and ethnic
  groups Blacks, Native Americans (Including
  Alaskan natives), Asians (including Pacific
  Islanders), Hispanic (including persons of
  Mexican, Puerto Rican, Cuban, Central or South
  American, or other Spanish origin or culture
  regardless of race), and whites other than
  Hispanic. The groupings are consistent with the
  EEOCs reporting requirements for all EEO report
  forms. Some of these requirements are modified
  for smaller employers in areas with non-diverse
  populations.
• Sometimes agencies such as the OFCCP may allow
  the employer to lump certain groups together,
  such as Blacks and Hispanics into a minority
  category. Data kept in this way would not
  necessarily comply with the Guidelines, and could
  result in the EEOC finding a bookkeeping
  violation.

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AVOIDING ADVERSE IMPACT AND MAINTAINING APPLICANT
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• Which kinds of records should be kept?
• If an employer has fewer than 100 employees, the
  Guidelines allow simplified record keeping. Such
  employers satisfy the requirements of the
  Guidelines if they maintain records showing for
  each year.
• The number of persons hired, promoted and
  terminated for each job by sex and where
  appropriate by race and national origin
• The number of applicants for hire and promotion
  by sex and where appropriate by race and national
  origin and
• The selection procedures used.

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• Employers with 100 or more employees need to
  maintain and have available, for each job,
  records or other information showing whether the
  total selection process for that job has an
  adverse impact on any of the groups discussed
  above. They must make adverse impact decisions at
  least annually for each such group. Where the
  total selection process for a job has an adverse
  impact, the employer should maintain and have
  available records or other information showing
  which components have an adverse impact. No
  employer, regardless of size, is required to make
  adverse impact determinations for race or ethnic
  groups which are less than 2 of the relevant
  labor force. Other rules apply as well.

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• Is there a quick method for determining whether
  an employment selection process has an adverse
  impact?
• The Four-Fifths Rule is a rule of thumb
  adopted by the agencies to determine if a group
  has a substantially different rate of selection,
  which works to their disadvantage as members of a
  race, sex or ethnic group. The Rule is not a
  legal definition, but a method used by federal
  agencies to detect serious discrepancies in rates
  of hiring, promotion, or other selection decision.

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AVOIDING ADVERSE IMPACT AND MAINTAINING APPLICANT
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• The Four-Fifths Rule is used to compare the
  selection rate of particular minority group
  applicants against that of the group with the
  highest rate of selection. If such a comparison
  shows that the percentage of persons selected
  from the minority applicants is less than
  four-fifths of the percentage of majority group
  applicants selected, the selection process has an
  adverse impact on the minority group. For
  example, if the employer hired 50 of white
  applicants, but only 30 of Black applicants the
  interpretation under the Guidelines is that
  selection process has an adverse impact upon
  Blacks because the selection rate for Blacks is
  60 (3/5ths) of the selection rate for whites.
• The Four-Fifths Rule is only useful to the issue
  of adverse impact, and does not determine the
  ultimate question of unlawful discrimination.
  Moreover, courts allow for proof of adverse
  impact based upon smaller differences as long as
  they are statistically significant. If, in using
  the Four-Fifths Rule, the numbers of persons and
  the difference in selection rates are so small
  that the difference could have occurred by
  chance, the federal agencies will not assume the
  existence of adverse impact in the absence of
  other evidence.

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• What if an employer has not kept records of
  applicants?
• If an employer does not keep data, such as
  applicant flow logs, in a way that would allow a
  federal agency to determine if there is an
  adverse impact, the agency may draw an inference
  of adverse impact in the selection process from
  the failure to keep such data. In addition, the
  EEOC can sue the employer for a record keeping
  violation.
• If the employer has not kept applicant records, a
  federal agency can still determine adverse impact
  by determining whether the ethnic, minority or
  gender group in question is underrepresented.
  This is done by comparing the employers
  workforce with the availability of the group in
  similar jobs in the relevant labor market.

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• Where applicable, evidence can also be found by
  examining the availability of the group in feeder
  jobs. (i.e., those positions which naturally or
  generally precede entry into the position which
  is being examined for under representation) in
  the employers workforce. Information about the
  relevant labor market is obtained from U.S.
  Census data, which is available for numerous
  types of jobs in various geographical areas.
• If a selection process, such as a test, results
  in an adverse impact on a protected group, the
  test may or may not be justified.

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• If a selection process, such as a test, results
  in an adverse impact on a protected group, the
  test may or may not be justified.
• The Guidelines discuss how to determine if a
  selection process is justified as a valid
  predictor of job success. Also discusses whether
  different methods would have less of an impact on
  the affected group. This is a very technical
  discussion, which merits a close reading of the
  Guidelines.

81
Equal Employment Opportunity is THE LAW

• http//www.dol.gov/esa/regs/compliance/posters/pd
  f/7975epos.pdf
• The Equal Employment Opportunity (EEO) Poster
• Every employer covered by the non-discrimination
  and EEO laws is required to post on its premises
  the poster, "Equal Employment Opportunity is the
  Law." The notice must be posted prominently,
  where it can be readily seen by employees and
  applicants for employment. The notice provides
  information concerning the laws and procedures
  for filing complaints of violations of the laws
  with the Office of Federal Contract Compliance
  Programs (OFCCP).

82
The U.S. Equal Employment Opportunity Commission

• http//www.eeoc.gov/facts/qanda.html
• Federal Laws Prohibiting Job DiscriminationQuesti
  ons And Answers

83
American Association for Affirmative ActionAAAA

• http//www.affirmativeaction.org/resources/index.
  html
• AAAA Resources
• Federal Laws and Regulations
• Federal Enforcement Agencies
• Courts and Legal Opinions
• Other Civil Rights Organizations
• Other Human Resources Organizations
• Conflict Resolution Associations and Alternative
  Dispute Resolution Organizations